Law Enforcement Compensation Quandaries: The Labor Department Offers Clarity

Law Enforcement is an important part of any municipality or county, no matter how large or small. Due to the long-standing need for law enforcement, and the challenges of providing it in different-sized communities, certain practices have evolved that assist in this effort. Two recent Opinion Letters from the U.S. Department of Labor (DOL) describe some of these practices and offer insight on how to manage those circumstances.

Volunteer Deputies

The first Opinion Letter (FLSA2019-12) provides guidance with respect to a particular type of volunteer law enforcement officer.

The community requesting the DOL Opinion Letter has a Sheriff’s Office that meets the need for additional enforcement through the Deputy Sheriff’s Association, a separate entity staffed with Sheriff’s Office employees. The Association maintains a roster of full-time deputies who perform extra-duty work. The Association coordinates third-party requests for deputies to perform extra duty work, collects payments from the third parties, and disburses payment to the deputies for their extra-duty hours. An example of extra-duty work is policing a weekend community run or walk.

The same Sheriff’s Office also runs a volunteer program where civic-minded individuals may volunteer to receive training as Reserve Deputies and serve, without compensation, as state-certified reserve officers. The volunteer Reserve Deputies program and the Deputy Sheriff’s Association have operated independently for decades without any significant crossover. However, an increase in demand for extra-duty work from third parties in recent years led the Deputy Sheriff’s Association to offer extra-duty work to volunteer Reserve Deputies at the same hourly rate offered to full-time deputies. The Sheriff’s Office asked the DOL to let them know if offering paid work to volunteers would compromise the volunteer nature of the work provided by the Reserve Deputies. Citing the regulations 29 CFR §§ 553.101(d) and 553.106(a), the DOL said that this would be allowable as it is a reasonable benefit of volunteering. This Opinion Letter may bolster volunteer activities of police and fire departments that came under scrutiny in previous administrations.

Law Enforcement and Fire Suppression Duties

The second Opinion Letter (FLSA2019-11) provides guidance about those employees who work as both police officers and firefighters for the same municipality. Section 7(k) of the Fair Labor Standards Act allows police and fire departments to put those engaging in law enforcement and fire suppression activities on a 28-day work period and work hours beyond 40 per week before earning overtime. Firefighters can work 212 hours before earning overtime, and police officers can work 171 hours before earning overtime. Clearly, paying an employee under the firefighter work allowance will result in fewer hours of overtime. The question is, What happens when they work in both occupations? The regulations are clear–it is where the majority of the work is performed. The question was whether this was just a straightforward calculation and whether the occupation where most of the hours were worked was the basis for overtime. Indeed that is the case. If an employee works more hours for the fire department than the police department, whether a lot or a little more, the calculation is based upon 212 hours for a 28-day period, etc.

The DOL stopped issuing Opinion Letters for several years. New Opinion Letters may help the public-sector employer that finds itself in an unusual situation and must decide whether or how to compensate those doing valuable work for the community. If you want to learn more about Opinion Letters, I am happy to discuss them with you.